It took a congressional investigation, a 27-state attorneys general objection, and a formal ethics complaint to get the Federal Judicial Center to pull a biased “climate science” chapter from its judges’ reference manual. It took a Senate hearing to get Justice Elena Kagan to admit she endorsed that chapter without reading a word of it—and that she still hasn’t.
I previously discussed the alarming efforts by climate activists to coopt the Federal Judicial Center’s (FJC) judicial education programs. They most recently culminated in the publication, at the end of last year, of the Fourth Edition of the Reference Manual on Scientific Evidence by the National Academies of Sciences, Engineering, and Medicine. This is the go-to guide federal judges use to evaluate scientific evidence. For the first time in its history, the manual included a chapter titled “Climate Science.” And this edition included a foreword written by Justice Elena Kagan.
That foreword was not a polite formality. Kagan wrote that “[i]n the coming years, judges will confront lawsuits relating, for example, to artificial intelligence, climate science, and epidemiology” (emphasis added). She added that “case in and case out, the instruction that the manual offers in scientific principles and methods can improve the quality of judicial decision making.” In plain English: Trust this book, including on climate science.
The problem is that the climate chapter wasn’t neutral science. It was litigation strategy with a bibliography. Its co-author, Jessica Wentz, is a longtime activist tied to the Climate Judiciary Project, an outside group the FJC quietly partnered with to “train” judges on climate science. She backed a Greenpeace human-rights complaint against oil and gas companies, opposed states’ EPA carbon-rule challenges, and testified for the youth activist plaintiffs in Juliana v. United States. The chapter’s section on so-called “attribution science”—the method plaintiffs use to pin companies with climate-change costs—was largely lifted from an academic article Wentz and her co-author wrote alongside a plaintiff lawyer, who was then given the chapter draft itself for feedback before publication. This wasn’t written by neutral scientists; it was written by someone embedded in the very litigation campaign advancing claims that judges are supposed to evaluate impartially. The bias was so glaring that 27 state attorneys general objected, the House Judiciary Committee launched an investigation, and in February Judge Robin Rosenberg, the FJC’s director, pulled the chapter entirely from the FJC’s version of the manual.
That would be scandal enough alone. But the Court has granted cert in Suncor Energy v. County Commissioners of Boulder County, asking whether state tort law can hold oil and gas companies liable for global climate change—implicating precisely the theory the withdrawn chapter supported. Justice Kagan sits on that case. She has not recused.
That’s why JCN, joined by more than twenty other signatories, sent a letter to Senate Judiciary Committee leadership noting her obligation under 28 U.S.C. § 455: A judge must step aside wherever her “impartiality might reasonably be questioned”—a bar easily met by authoring a promotional preface for a judges’ reference manual featuring an overtly biased “climate science” chapter that goes to the heart of pending litigation.
On Tuesday, at a Senate Appropriations subcommittee hearing regarding the Supreme Court’s budget, Senator Susan Collins asked Kagan about the foreword. The justice’s answer included the stunning statement that “I hadn’t read the chapter in question prior to that time. Actually, I still haven’t read it.”
Think about that. Wentz’s activist ties have been public for over six months—a congressional inquiry, a 27-state AG objection, our own reporting, and now our formal ethics complaint. Yet the justice whose name is stamped on the foreword still hasn’t opened the chapter. She told every federal judge in the country to trust this manual’s “scientific principles and methods” on climate science, without ever checking whether that was true.
Kagan’s statement to Collins also included a concession:
The entire purpose of this book really is not to take positions on contested and contestable matters; it’s to help judges, assist judges, with respect to scientific issues, but not with any kind of slant either way. . . . I think that Judge Rosenberg’s hope is that things will be learned from this experience, and that the Federal Judicial Center won’t ever find itself in this position again.
Kagan understands that the chapter she praised was biased enough to require withdrawal and that it was a mistake to include it in the manual. But she wants to have her cake and eat it too. She helped promote the manual, lending it her office’s credibility, and now that there are calls for accountability, she backs away from the chapter she endorsed. Taking her statement at face value, why did she endorse something she didn’t read?
Moreover, while the FJC’s version of the manual has been scrubbed, Kagan’s foreword still stands, unretracted, in the National Academies of Sciences, Engineering, and Medicine (NASEM) edition—climate chapter and all. The appearance of bias remains there. This needs to be remedied, and Justice Kagan should own up to her own lapse in judgment.